Join The Club: Tumblr Is The Latest Company Sued By Perfect 10

from the good-luck-getting-some-of-that-zero-revenue dept

And here we go again. Perfect 10 likes to describe itself as a porn publisher, but it's become clear that it's real business seems to be about suing internet companies by claiming copyright infringement. It's sued all sorts of companies, using all kinds of bizarre legal arguments, many of which have resulted in losses (and useful precedents), but sometimes sites seem to settle and Perfect 10 just keeps suing. It's latest target is Tumblr, which it has sued for copyright infringement using many of the same old theories it's used before. You would think that Perfect 10's Norman Zada would have at least waited until Tumblr was actually making some revenue before suing, but apparently he couldn't wait.

So how is Perfect 10 trying to get around the DMCA claims? First, by claiming that Tumblr ignored its DMCA notices. If this is true, that certainly would damage Tumblr's DMCA safe harbor claims. Though, it would surprise me if it was true. In many of its other cases, it's later come out that what Perfect 10 claims are legitimate DMCA takedown notices are anything but. In fact, it often appears like Perfect 10 tries to make its DMCA notices almost impossible to comply with -- which, if true, would be one way to make it easier for the company to then sue over failed compliance...

Second, it claims that Tumblr's own employees uploaded Perfect 10 images to "jumpstart" Tumblr's success. Again, if true, those actions would not be covered by the DMCA's safe harbors, but the filing provides little to no support for the claim that this happened. Perhaps it's true, but given Perfect 10's past, it would nice to see some actual evidence there in order to believe the claim, and not think that this might just be a fishing expedition.

Finally, Perfect 10 claims that the fact that Tumblr has a search engine lets people find the infringing pictures. They seem to be arguing that this is part of the contributory infringement claim. I'd imagine that this is based on the fact that part of the reason Rapidshare beat Perfect 10 was the lack of a search engine (and, yes, here is where we note the irony that the US gov't is using the lack of a search engine as proof that Megaupload was clearly illegal -- when that same fact actually helped get Rapidshare deemed legal). Still, Perfect 10 hasn't had much luck getting any actual search engine found liable, so it's unclear why it will suddenly start with Tumblr.

We'll see what other evidence comes out, but, assuming Tumblr's employees did not directly infringe Perfect 10's work and that there is an explanation for the "DMCA notices," one would hope that Tumblr will join many other top internet companies in fighting back against Perfect 10 and (hopefully) create a few more good precedents along the way.

Filed Under: copyright troll, dmca, norman zada, porn, safe harbors
Companies: perfect 10, tumblr

If Piracy Is So Devastating, Why Are We Seeing An Unprecedented Outpouring Of Creativity?

from the what-was-the-problem-again? dept

One of the favorite tropes of the anti-piracy crowd is that all this unauthorized sharing is killing culture, pauperizing artists and generally making the world go to hell in a handbasket. The only pieces of evidence adduced in support of that position are the market reports put together for the copyright industries that (a) say the sky is falling and (b) base that analysis on the industries' own unsubstantiated claims.

In fact, as we know, for all of the copyright industries, the Sky is Rising. But that's only half the story, for alongside the traditional distribution channels, there are now entirely new ways in which people can create and share their creations. These have only emerged in the last few years, and so there is a natural tendency to underestimate their importance. But gradually figures are emerging that hint at the extraordinary scale of the creativity they foster.

For example, user uploads to YouTube are now running at one hour of videos every second -- that's 86,400 hours every day, and over thirty million hours per year. Now, a portion of that content may be copyright material -- but only some, and probably not much. That's because Google has been employing its Content ID system for some time now:

What is Content ID?

YouTube's state-of-the-art technologies let rights owners:

Identify user-uploaded videos comprised entirely OR partially of their content and

Choose, in advance, what they want to happen when those videos are found. Make money from them. Get stats on them. Or block them from YouTube altogether.

It's up to you.

How does Content ID work?

Rights holders deliver YouTube reference files (audio-only or video) of content that they own, metadata describing that content, and policies on what they want YouTube to do when we find a match.

We compare videos uploaded to YouTube against those reference files.

Our technology automatically identifies your content and applies your preferred policy: monetise, track or block.

What the use of Google's Content ID means is that the stuff copyright companies care about is already being caught. What's left varies from high-art mashups to how-to manuals to cat videos. But whatever it is, there's lots of it, with millions of hours of new content being uploaded every year.

Tumblr hosts a different kind of user-generated content, but with similarly huge holdings. It currently has over 20 billion posts on 51 million blogs, and each day, over 60 million more are added:

The average Tumblr user creates 14 original posts each month, and reblogs 3. Half of those posts are photos. The rest are split between text, links, quotes, music, and video.

Again, some of the music and video shared on Tumblr may be unauthorized sharing, but much of that creativity -- the photos, text and links -- almost certainly isn't.

Meanwhile, on a site that most people have forgotten about, assuming they'd ever heard about it in the first place, content in the form of wikis is being produced in ever-greater quantities:

Listed among the top 10 social networks and blogs in the U.S. by Nielsen in 2011, Wikia sees nearly 50 million global unique visitors per month, has over 339,000 communities (600 new ones added daily), and is witnessing 42% traffic growth year-over-year.

More specifically, gaming and entertainment communities have been Wikia’s bread and butter. The site hosts over 65k game wikis with 2.48M game pages. Elder Scrolls, for example has 8k+ content pages and it would take a month to read them all at 5 minutes per page.

Putting these kind of figures together with the daily output of hundreds of millions of users on Twitter and its Chinese analogs -- to say nothing of the near-billion Facebookers -- and what emerges is a ferment of creativity the likes of which the world has never seen before. So how can this be squared with the repeated claims that piracy is somehow leading to the death of culture?

I think the answer is that in the eyes of many commentators all this activity simply "doesn't count". That is, a video on YouTube is not "real" art, and a Tumblr post is not "real" literature. So when people complain that piracy is "killing" culture, what they are really expressing is their own incomprehension in the face of this new kind of art.

To admit that piracy isn't a problem, because it seems to be leading to more, not less creativity, would be to admit that the huge outpourings of user-generated content are indeed art, some of it even rather good art. And that, rather than any supposed harm from unauthorized sharing of copyright materials, is what many seem to fear. For the copyright industries and cultural commentators it calls into question their ability to make aesthetic judgments -- and hence money -- while for the artists, it questions their privileged position in society, and the special role of their art there.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: creativity, culture, piracy, sky is rising
Companies: tumblr, twitter, wikia, youtube

Will Tumblr's New Terms Of Service Finally Lead To The De-Stupidifying Of Terms Of Service?

from the that-would-be-nice dept

Late last week there was some buzzing over Tumblr's new Terms of Service, which some noted had some amusingly plain language explanations in them, resulting in a bit of news coverage. Having gone through the process of creating terms of service with lawyers before, I'm somewhat jaded on the subject -- even though I thought we had pretty good lawyers who worked with us. The problem, however, is that terms of service, like contracts, are often defined by very specific things that have gone wrong in the past, and the lawyers make their money in trying to keep such things from going wrong in the future. Their job isn't to make your terms fun and friendly, but rather to protect you from getting into legal trouble. We had even suggested doing a "human readable" terms of service to go with the legalese and were warned not to do so -- as it could create problems later on if the human readable section and the legal section were somehow determined to disagree.

Tumblr has apparently decided to take that chance, and some of the quotes that are getting attention are actually from those "human readable" explanations. Such as this little tidbit:

You have to be at least 13 years old to use Tumblr. We're serious: it's a hard rule, based on U.S. federal and state legislation, even if you're 12.9 years old. If you're younger than 13, don't use Tumblr. Ask your parents for an Xbox or try books.

Thing is, that's not really in the "terms" itself, but in a call out explaining the actual terms, which are a bit more legal (though really not too bad). There are also other fun tidbits in the human readable explanations, like:

Don't do bad things to Tumblr or other users. Some particularly egregious examples of automated "bad things" are listed in this section.

One other nice thing in the human readable section deals with the part of most services terms that confuses the hell out of people and often leads to unnecessary freakouts is the license to the site, which is basically just saying you can't upload stuff to a site and then sue them for displaying it. People often misinterpret this clause such that they think it means you're giving the site your intellectual property rights and/or that they're going to go off and sell you stuff. Tumblr directly addresses this by first making it clear you retain rights to whatever, but then also saying:

When you upload your creations to Tumblr, you grant us a license to make that content available in the ways you'd expect from using our services (for example, via your blog, RSS, the Tumblr Dashboard, etc.). We never want to do anything with your content that surprises you.

Something else worth noting: Countless Tumblr blogs have gone on to spawn books, films, albums, brands, and more. We're thrilled to offer our support as a platform for our creators, and we'd never claim to be entitled to royalties or reimbursement for the success of what you've created. It's your work, and we're proud to be a part (however small) of what you accomplish.

It's definitely nice to explain this so clearly, since it's clearly a point where some people go completely crazy in misunderstanding what's being said.

Also, I note, with interest, that it appears that Tumblr has also removed the indemnification clause that is so standard in pretty much any terms of service. I think this is a good move. These things have become totally standard, but I'm curious if anyone can name a single time that an internet service provider invoked the indemnity clause when getting sued? What service provider would actually do that? It would almost certainly turn against them and freak out other users.

The press coverage is also highlighting a few other funny clauses... but those aren't actually in the terms of service, but rather the "community guidelines" which don't need to be nearly as legally relevant. I'll point out a few, but note that funny/human readable community guidelines really aren't that crazy an idea, but Tumblr's guidelines definitely are pretty good. A few amusing tidbits:

• Uploading Sexually Explicit Video. You can embed anything as long as it follows the other guidelines on this page. But please don't use Tumblr's Upload Video feature to host any sexually explicit videos. We're not in the business of profiting from adult-oriented videos and hosting this stuff is fucking expensive. You can use services like xHamster to host those instead.
• Impersonation, Stalking, or Harassment. Treat the community the way you'd like to be treated. Don't attempt to circumvent the Block feature. If you want to parody or ridicule a public figure (and who doesn't?), don't try to trick readers into thinking you are actually that public figure.
• Don't post content that violates anyone's privacy, including personally identifying or confidential information like credit card numbers, social security numbers, unlisted contact information, or private photos of your ex's junk (no matter how attractive).

Honestly, the coolest thing about Tumblr's terms of service is the fact that they've put it on github so you can really see the changes they made very easily, as the system highlights the difference, even for very minor changes. This is a really good idea, and one that it would be nice if other sites followed suit on.

That said, after seeing a couple stories about the new terms before reading them, I expected the terms to be a lot more human readable than they really were. This, once again, likely highlights my experience with lawyers five or so years ago when I went through this process. There really is only so much you can do. Still, this leads to two thoughts. First, just the fact that Tumblr is getting some attention for this makes me wonder if others will now strive for similar (or, better yet, great) simplicity in their terms and policies. That would be a nice and beneficial trend.

The second though is one I've brought up in the past as well: all this really does is highlight just how useless terms of service are in general. Even in a case like this where they're "more readable" most people aren't actually reading them or caring about them. And yet, for legal reasons, every site feels the need to have one (same with privacy policies). All these things really are designed to do is to provide legal coverage, but they do absolutely nothing to actually benefit users. When you have to do things to satisfy legal requirements which don't actually benefit users, it's a total waste of resources.

Filed Under: human readable, terms of service
Companies: tumblr

For Those Freaking Out Over Pinterest's Terms Of Service, Have You Stopped Using Every Other Internet Site Yet?

from the calm-down,-sparky dept

Last month we suggested that copyright holders stop freaking out over Pinterest. At the time, we noted there were two areas that people were panicking about: one was the terms of service and the other was whether or not Pinterest itself was violating the copyrights of images that are "pinned" by its users. We focused on the latter issue (and pointed out it was stupid) and breezed past the first issue by noting that the terms of service issue was silly, because the terms are mostly boilerplate language used by pretty much every online site.

Unfortunately, it appears that not everyone reads Techdirt (tragic, that) and the freakout has continued -- and it only seems to have grown over the past few weeks. We keep seeing more and more articles giving the terms of service issue attention. So many of the articles point back at a silly blog post by a lawyer describing how she "tearfully deleted" her Pinterest boards after reading the terms of service. For whatever reason, this story went viral, despite the fact that even the way she wrote it suggests this is one of her first forays into internet terms of service and copyright issues. She also notes in her post that "you have no right to reproduce this article or any portion thereof" which is a copyfraud statement, overclaiming rights. Yes, I do have the right to produce "portions thereof" in situations where it's fair use, and I will do so -- such as here, when I am commenting on her article.

Either way, her "tearful" post covers ground that's been covered many times before. This same issue comes up every so often when people read online terms of service for the first time. In the past we've seen similar freakouts about Twitpic, Google Plus and other sites as well.

Thankfully Nancy Sims, the copyright librarian at the University of Minnesota Libraries, puts the smack down on the FUD that people are kicking up concerning Pinterest's indemnification, right to share and copyright license clauses. She notes that these elements are found in just about every user-generated content site's terms of service, and goes through the details of Tumblr, YouTube, Facebook and even her own University's terms of service:

Tumblr

Indemnity: "Subscriber will indemnify and hold Tumblr, its directors, officers and employees, harmless, including costs and attorneys' fees, from any claim or demand..."
Right to share: "Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party [...] (c) infringes any intellectual property right of another or the privacy or publicity rights of another..."
License of copyrights: "...hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works..."

Full Tumblr Terms of Service

YouTube

Indemnity: "...you agree to defend, indemnify and hold harmless YouTube, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees)..."
Right to share: "You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.." AND "You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein."
License of copyrights: "you license to YouTube all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service" AND
"you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content..."

(Not to mention points 9 and 10, in all their caps-locked glory.)

Full YouTube Terms of Service

Facebook

Indemnity: "If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."
Right to share: "You will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law."
License of copyrights: "For content that is covered by intellectual property rights, like photos and videos (IP content) [...] you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."

(Props on their use of human-readable language!) 

Full Facebook Terms of Service 

And finally, from a user agreement for uploading content onto a server the University of Minnesota Libraries hosts! (Yes, I think these are reasonable terms of use, because I was involved in drafting them! (Although I'd still simplify the language a little.))

Indemnification (sort of): "I agree that I am solely responsible for the Content and for any consequences of uploading it to the [Server] and making it publicly available..."
Right to share: "I am the sole creator and the owner of the copyrights and all other rights in the Content; or without obtaining another's permission, I have the right to deposit the Content in the [Server]" AND "The Content does not infringe the copyrights or other intellectual property rights of another, nor does the Content violate any laws or another's rights of privacy or publicity. The Content is solely my original creation or if not, those portions that are not my creation are used with the copyright holder's express permission or as permitted by law."
License of copyrights: "I grant [...] the following non-exclusive, perpetual, royalty-free, world-wide rights and licenses: to access, reproduce, distribute and publicly display the Content, in whole or in part, to secure, preserve and make it publicly available, and to make derivative works based upon the Content in order to migrate the Content to other media or formats, or to preserve its public access."

This kind of stuff is standard. Hell, even we've got some similar terms over at the Insight Community (and we had to fight with our lawyers to push back on some of them). All of these terms are pretty standard. They're basically meant to prevent the company from getting sued if you abuse the service, which is kind of silly since the companies are mostly protected by safe harbors anyway, and no tech startup would ever actually use one of these indemnity clauses against an ordinary user because they'd then lose every single other user they have.

I recommend people read the rest of Sims' article about all of this, as she notes that there's a tremendous amount of FUD making the rounds concerning Pinterest, which seems to be creating an unnecessary chilling effect against using the site.

Filed Under: copyright, indemnification, terms of service
Companies: facebook, pinterest, tumblr, youtube

More And More People Speak Up Against SOPA

from the speak-up dept

With the hearings this morning (more on that later), there were also more statements publicly made against SOPA this morning. Two key ones are, unfortunately, behind Politico's paywall, so I can't link or quote too much. The first, by former Homeland Security Assistant Secretary and former NSA General Counsel, Stewart Baker, was raised a few times during the hearings. Baker focused on the problems of SOPA and PROTECT IP and their impact on online security. He notes that the DNS blocking portions of both bills "run directly counter" to the government's cybersecurity efforts:

Because “block and redirect” is exactly what crooks are doing today to bank customers. If the bills become law, the security system won’t be able to tell the difference between sites that have been blocked by law and those that have been sabotaged by hackers. Indeed, it isn’t hard to imagine crooks redirecting users to sites that say, “You were redirected here because the site you asked for has violated copyright,” while at the same time planting malware on the user’s computer.

There's much more in the article as well, noting that these laws won't actually help Hollywood and will "leave the rest of us hurting and poorer for years." The really tragic part of the hearing is that when all of the panelists were asked about Baker's statement, every single one of them admitted that they didn't understand the technology enough to really comment. The best that the MPAA's Michael O'Leary could blurt out was that he "didn't agree."

The second interesting piece at Politico comes from famed Constitutional scholar Laurence Tribe, who more or less acts as a counterweight to Floyd Abram's letter. He basically highlights all of the problems we've discussed over the past few weeks: vague definitions, broadly targeted, will impact perfectly legitimate sites. And, he notes clearly: "It would violate the First Amendment."

A key provision of the bill would give copyright owners the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice that the site is “dedicated to the theft of U.S. property” — even if no court has actually found any infringement.

The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. Courts have always treated such cutoffs of revenue from speech as a suppression of that speech, and the silencing of expression in the absence of judicial review is a classic prior restraint forbidden by the First Amendment.

Just as we have said in the past. It seems that more and more lawyers are making this point. So far, the pro-SOPA side has Floyd Abrams. He's respected, sure, but so is Tribe and so are many of the other lawyers who have questions SOPA's impact on the First Amendment.

Lots of internet companies have come out against the bill as well. Reddit and Tumblr both joined with American Censorship Day, blocking out parts of their site. Tumblr went so far as to blackout their entire dashboard. Along with them Kickstarter and FourSquare both spoke out against the bills as well. These are all platforms that content creators today rely on to create, connect, promote, distribute and monetize their works. In other words, these are the platforms of the future -- the platforms that could be crippled with legal and regulatory compliance under these bills. Burdening them doesn't help content creators. It may help the big record labels and the big studios -- the ones who don't want musicians and filmmakers "going direct" via these platforms... but it doesn't help actual content creators or the public.

Web hosting platform/CDN Cloudflare has weighed in by warning of legal denial of service attacks that would be enabled under the bill:

We've been seeing a disturbing trend recently. Increasingly, we're receiving purported DMCA requests that ask us to identify website hosts that are actually from attackers abusing the legal code. If we reveal the requested information, attacks are launched directly at those hosts, bypassing CloudFlare's protections and knocking legitimate sites offline. Initially, these requests were relatively easy to spot. When we recognized the new attack method, we changed our policies and trained our customer support team to more carefully screen DMCA requests. Increasingly, however, the requests are becoming more sophisticated and difficult to detect.

Imagine the challenge for someone on CloudFlare's support team. If someone writes to us alleging that they are a photographer who took a picture that appears on a website, or a designer who drew a logo, or an author who wrote some text, how can that claim be verified? I'm an attorney and member of the bar. I teach a course on intellectual property and technology law at the John Marshall Law School. I serve on the Board of the Center for Information Technology and Privacy Law. I've reviewed many of these requests and, even with my training in the subject, I have no idea how to effectively and efficiently tell the difference between valid and invalid complaints.

In an Internet without bad guys, the consequences of revealing a host's information is relatively minimal. Unfortunately, the Internet is full of bad guys. There has been a steady rise in attacks, increasingly affecting legitimate small businesses and ecommerce sites. These attacks have been part of why more than 100,000 websites have sought shelter behind CloudFlare in just the last 12 months. We offer great technical protections to shield sites from attack, but I'm concerned some of our efforts could be undermined by new laws like SOPA.

Yes, read that again, because it's downright scary.

Mozilla, the makers of Firefox, also joined in, with the following on their website: They've also put up an entire information page about SOPA.

Perhaps most interesting of all, even Rep. Zoe Lofgren joined in with American Censorship Day by censoring her own logo on her official House website:

Filed Under: copyright, cybersecurity, dns, first amendment, laurence tribe, sopa, stewart baker
Companies: foursquare, kickstarter, reddit, tumblr